Workers' (Occupational Diseases) Relief Fund Act 1954
In ForceTAS
Jurisdiction
Tasmania
Act Number
45 of 1954
Collection
act
Plain English Summary
7/10 complexity
This Act sets out a compensation scheme for certain mining-related occupational diseases, using medical certification, appeal to medical referees, and formulas for weekly or lump-sum payments to affected employees or their dependants. It limits coverage to persons who were eligible immediately before a specified commencement date and transfers administration, funds and remaining assets to the Crown and the Public Account while directing a portion to the University of Tasmania for medical research.
This Act sets out a narrowly circumscribed, residual scheme for compensation and administration in respect of occupational diseases for a defined cohort of mining employees, and provides the machinery for winding up the Board that formerly administered the Workers' (Occupational Diseases) Relief Fund. Mechanically, the Act (a) preserves compensation entitlements and the medical/appeal framework for employees who were eligible immediately before the commencement date and for diseases for which compensation had been paid or approved at that time (see s 4); (b) retains rules for establishing incapacity and death caused by disease and for calculating weekly and lump‑sum payments (see Part III, in particular ss 20, 21, 22, 23, 24, and Schedule 4); (c) preserves medical governance, including appointment and remuneration of certifying medical officers and medical referees and the finality/conclusiveness of certain medical certificates subject to prescribed appeals (see s 14, ss 20(3), 32); (d) provides administrative investigatory powers to the Secretary, including compulsory production of information and documents and the power to administer oaths (see ss 36-37); (e) establishes enforcement, penalty and evidence rules related to non‑compliance, false information and privacy of medical information (see ss 23(6)-(7), 46); and (f) gives express transitional and winding‑up powers and effects, transferring the Board’s assets, liabilities and legal proceedings to the Crown, repaying parts of the Fund to the Crown, vesting balances in the University of Tasmania for a specified research trust, and providing for payment of outstanding claims from the Public Account (see Part VI, ss 49-53).
The Act also delegates financial flows to the Public Account for medical examiner fees, examinations expenses and outstanding claims (see s 14(3)-(4), s 33(4), s 51). It preserves special schemes for particular respiratory diseases (pneumonokoniosis, silicosis, fibrosis) including staged compensation limits and employment restrictions for compensable claimants (see s 23). The Act intersects with other statutes by reference: the Workers Rehabilitation and Compensation Act 1988 for the basic rate used in death compensation (s 3(1)), the Relationships Act 2003 for family relationships (s 3(1)), the Mineral Resources Development Act 1995 in relation to inspectors (s 20(1)(b)), the Supreme Court Civil Procedure Act 1932 for Crown rights in proceedings (s 52(2)), and the Tasmanian Civil and Administrative Tribunal as the appeal forum for Secretary decisions (ss 43, 44(2)).
Current sections
Direct links to the current provisions in Workers' (Occupational Diseases) Relief Fund Act 1954.
The Acts that are specified in Schedule 1 are repealed.
3
Interpretation
3 Interpretation
[Section 3 amended by No. 16 of 1965, s. 2 ][Section 3 amended by No. 78 of 1967, s. 2 ][Section 3 amended by No. 26 of 1991, s. 6 ]**[Section 3 Substituted by No. 44 of 1993, s. 4 ]
(1) *[Section 3 Subsection (1) amended by No. 31 of 1957, s. 2 ][Section 3 Subsection (1) amended by No. 96 of 1957, s. 2 ][Section 3 Subsection (1) amended by No. 54 of 1959, s. 2 ][Section 3 Subsection (1) amended by No. 40 of 1960, s. 2 ][Section 3 Subsection (1) amended by No. 16 of 1965, s. 2 ][Section 3 Subsection (1) amended by No. 78 of 1967, s. 2 ][Section 3 Subsection (1) amended by No. 106 of 1973, s. 2 ][Section 3 Subsection (1) amended by No. 29 of 1984, s. 3 and Sched. 1 ][Section 3 Subsection (1) amended by No. 38 of 1988, s. 4 ][Section 3 Subsection (1) amended by No. 26 of 1991, s. 6 ][Section 3 Subsection (1) amended by No. 42 of 1996, s. 3 and Sched. 1 ]*In this Act, unless the contrary intention appears –
court includes a tribunal or authority which is empowered by, or under, law to determine any matter judicially;
dependants means such members of the family of an employee as were dependent, wholly or partly, upon the earnings of the employee at the time of his or her death or would have been so dependent but for the incapacity of the employee due to disease, and includes a person whom the Secretary considers to be, or to have been, actually dependent upon the earnings of an employee;
employee means a person to whom this Act applies as provided by section 4 ;
employer means a person with whom an employee has entered into a contract of employment or apprenticeship and includes the personal representative of a deceased employer;
functions includes duties;
legal proceedings includes an arbitration;
medical referee means a person appointed as a medical referee under section 14 ;
[Section 3 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004]member of the family, in relation to an employee, means the spouse, caring partner, father, step-father, grandfather, mother, step-mother, grandmother, son, step-son, grandson, daughter, step-daughter, granddaughter, brother, half-brother, sister or half-sister of the employee;
mineral does not include coal or shale;
mining operations means –
(a) the disturbing, removing, carting, carrying, sifting, smelting, refining, crushing or otherwise dealing with or treating any rock, stone, quartz, clay, sand, soil, ore or mineral by any method for the purpose of obtaining metals or minerals or for prospecting for metals or minerals; and
(b) any process in connection with the dealing with, treating or handling of, any rock, stone, quartz, clay, sand, soil, ore or mineral for that purpose; and
(c) the dealing with, treating or handling, in connection with a process mentioned in paragraph (a) or (b) , of any by-products or residues produced by, or arising from, that process; and
(d) the cutting, dressing, shaping or working on any stone, granite, marble or other similar substance; and
(e) the quarrying of blue metal or freestone; and
(f) the driving of a tunnel –
but does not include sluicing, dredging or any similar operations or mining for coal or shale, or the quarrying or crushing of any materials required for the construction or maintenance of roads;
obligations includes duties and liabilities;
property means any legal or equitable estate or interest, whether present or future and whether vested or contingent, or real or personal property of any description, and includes entitlements, powers and privileges;
regulations means regulations made and in force under this Act;
Workers' Fund means the Workers' (Occupational Diseases) Relief Fund as continued under this Act immediately before the commencement date.
(2) References in this Act to the average weekly earnings of an employee before his or her incapacity or death are to be construed as references to his or her average weekly earnings as determined in accordance with Schedule 4 .
4
Application of Act to certain mining employees
4 Application of Act to certain mining employees
*[Section 4 Substituted by No. 44 of 1993, s. 4 ]*This Act applies only –
(a) to a person who immediately before the commencement date was an eligible employee within the meaning of this Act as then in force; and
(b) in respect of a disease for which compensation had at that time been paid or approved under this Act.
Part II
Administration
Part II Administration
5.
5.
[Section 5 Repealed by No. 44 of 1993, s. 5 ]
6.
6.
[Section 6 amended by No. 16 of 1965, s. 2 ][Section 6 amended by No. 20 of 1986, s. 3 ][Section 6 Repealed by No. 44 of 1993, s. 5 ]
7.
7.
[Section 7 Repealed by No. 44 of 1993, s. 5 ]
8.
8.
[Section 8 Repealed by No. 44 of 1993, s. 5 ]
9.
9.
[Section 9 Repealed by No. 44 of 1993, s. 5 ]
10.
10.
[Section 10 amended by No. 78 of 1967, s. 4 and Sched. 1 ][Section 10 Repealed by No. 44 of 1993, s. 5 ]
11.
11.
[Section 11 amended by No. 78 of 1967, s. 4 and Sched. 1 ][Section 11 Repealed by No. 44 of 1993, s. 5 ]
12.
12.
[Section 12 Repealed by No. 44 of 1993, s. 5 ]
13.
13.
[Section 13 Substituted by No. 29 of 1984, s. 3 and Sched. 1 ][Section 13 amended by No. 38 of 1988, s. 5 ][Section 13 Repealed by No. 44 of 1993, s. 5 ]
14
Certifying medical officers and medical referees
14 Certifying medical officers and medical referees
[Section 14 amended by No. 106 of 1973, s. 3 ][Section 14 amended by No. 38 of 1988, s. 6 ][Section 14 Substituted by No. 44 of 1993, s. 5 ]
(2) A certifying medical officer or medical referee holding office under this Act immediately before the commencement date is taken to have been appointed under this section.
(3) The Secretary must pay to –
(a) a certifying medical officer; or
(b) a medical referee –
such fee as the Minister may approve in respect of each examination made, certificate given or work or service performed for the purposes of this Act.
[Section 15 amended by No. 38 of 1988, s. 6 ][Section 15 Repealed by No. 44 of 1993, s. 5 ]
Part III
Provisions Relating to Mining Employees
Part III Provisions Relating to Mining Employees
16.
16.
[Section 16 Repealed by No. 44 of 1993, s. 6 ]
17.
17.
[Section 17 amended by No. 24 of 1982, s. 3 ][Section 17 amended by No. 20 of 1986, s. 4 ][Section 17 Repealed by No. 44 of 1993, s. 6 ]
18.
18.
[Section 18 amended by No. 20 of 1986, s. 5 ][Section 18 Repealed by No. 44 of 1993, s. 6 ]
19.
19.
[Section 19 Repealed by No. 44 of 1993, s. 6 ]
20
Examination by certifying medical officer or medical referee
20 Examination by certifying medical officer or medical referee
(1) A certifying medical officer –
(a) shall examine an employee who presents himself for medical examination in accordance with any of the provisions of this Act in order to ascertain whether the employee is suffering from disease or not; and
(2) *[Section 20 Subsection (2) amended by No. 44 of 1993, s. 15 and Sched. 2 ]*An inspector of mines shall, forthwith after receiving a certificate under this section, forward or deliver the certificate to the Secretary.
(3) Subject to the right of appeal conferred on employers and employees by section thirty-two , a certificate of a certifying medical officer under this section is conclusive to all matters contained therein in relation to the health of the employee to whom it relates.
(4) *[Section 20 Subsection (4) amended by No. 44 of 1993, s. 15 and Sched. 2 ]*An employee and his employer may each inspect any medical certificate given in relation to the health of the employee under this section while the certificate is in the possession or custody of an inspector of mines or of the Secretary.
21
Compensation
21 Compensation
*[Section 21 Amended by No. 44 of 1993, s. 15 and Sched. 2 ]*Compensation is payable to and in respect of employees subject to and in accordance with the provisions of this Part.
22
Compensation in case of incapacity
22 Compensation in case of incapacity
(1) *[Section 22 Subsection (1) amended by No. 31 of 1957, s. 3 ][Section 22 Subsection (1) amended by No. 106 of 1973, s. 4 ][Section 22 Subsection (1) amended by No. 44 of 1993, s. 14 and Sched. 1 and s.15 and Sched. 2 ]*Where it is established to the satisfaction of the Secretary, on the certificate of a certifying medical officer or, on appeal from that certificate, on the certificate of a medical referee, that an employee is suffering from disease and is thereby incapacitated from continuing to work as an employee, that employee is entitled to compensation in accordance with this section.
(2) *[Section 22 Subsection (2) amended by No. 31 of 1957, s. 3 ][Section 22 Subsection (2) omitted by No. 16 of 1965, s. 4 ][Section 22 Subsection (2) inserted by No. 106 of 1973, s. 4 ]*The compensation payable to an employee under this section shall be by way of weekly payments at the relevant compensation rate.
(3) *[Section 22 Subsection (3) substituted by No. 31 of 1957, s. 3 ][Section 22 Subsection (3) substituted by No. 16 of 1965, s. 4 ][Section 22 Subsection (3) amended by No. 78 of 1967, s. 4 and Sched. 1 ]**[Section 22 Subsection (3) substituted by No. 106 of 1973, s. 4 ]*Subject to subsection (3A) of this section, the relevant compensation rate in respect of a period of incapacity of an employee is –
(a) the average weekly earnings of the employee over the period of twelve months ending at the commencement of the period of incapacity; or
(b) the ordinary time rate of pay of the employee (as expressed by reference to a week) for the work in which he was engaged immediately before the period of incapacity –
whichever is the greater.
(3AA) [Section 22 Subsection (3AA) inserted by No. 16 of 1965, s. 4 ]**[Section 22 Subsection (3AA) omitted by No. 106 of 1973, s. 4 ]. . . . . . . .
(3A) *[Section 22 Subsection (3A) inserted by No. 31 of 1957, s. 3 ][Section 22 Subsection (3A) substituted by No. 54 of 1959, s. 3 ][Section 22 Subsection (3A) substituted by No. 106 of 1973, s. 4 ]*If, during a period of incapacity of an employee, the ordinary time rate of pay (as expressed by reference to a week) for any work on which he was engaged immediately before the commencement of that period increases or decreases, the relevant compensation rate shall correspondingly be increased or decreased by the like amount.
(4) Where an employee would, but for the provisions of this subsection, be entitled to compensation under this section in respect of incapacity due to disease, and his employer provides him with other work that is not in the nature of mining operations and that the employee is capable of performing and the remuneration for the other work is not less than the remuneration that the employee was receiving at the time when the incapacity arose, the employee is not entitled to receive any compensation under this section while he is in receipt of that remuneration, and is not entitled to receive any compensation under this section if the other work is offered to him by his employer and he refuses to accept it.
(5) *[Section 22 Subsection (5) substituted by No. 16 of 1965, s. 4 ]**[Section 22 Subsection (5) amended by No. 106 of 1973, s. 4 ]*Where an employee is permanently incapacitated, either wholly or partially, from continuing to work as an employee and is entitled to compensation under this section he may, if he has attained the age of eighteen years, enter into an agreement in writing with the Board to receive a lump sum in satisfaction of the whole or a part of the weekly payments to which he would otherwise be so entitled; and upon payment of that lump sum his right to those weekly payments shall be deemed to have been satisfied to the extent specified in the agreement.
(6) *[Section 22 Subsection (6) substituted by No. 16 of 1965, s. 4 ]**[Section 22 Subsection (6) amended by No. 44 of 1993, s. 14 and Sched. 1 ]*An agreement made under subsection (5) of this section shall be filed with the Secretary.
(7) *[Section 22 Subsection (7) amended by No. 54 of 1959, s. 3 ][Section 22 Subsection (7) substituted by No. 16 of 1965, s. 4 ][Section 22 Subsection (7) amended by No. 78 of 1967, s. 4 and Sched. 1 ]*No payments shall be made by way of compensation under this section the aggregate of which, as determined in accordance with section twenty-five AA , exceeds two hundred and eighty-four times the amount of average basic rate for the period of those payments, as determined in accordance with that section.
(8) *[Section 22 Subsection (8) substituted by No. 16 of 1965, s. 4 ][Section 22 Subsection (8) amended by No. 106 of 1973, s. 4 ][Section 22 Subsection (8) amended by No. 44 of 1993, s. 14 and Sched. 1 ]*Any payments which the Secretary would have otherwise been required to make under this section to a person who is under the age of eighteen years may be made to the Public Trustee to be applied by him at his discretion for the benefit of that person.
(9) *[Section 22 Subsection (9) amended by No. 44 of 1993, s. 14 and Sched. 1 ]*Claims by employees for compensation under this section shall be determined by the Secretary on application to it in the prescribed manner by or on behalf of the claimants.
(10) *[Section 22 Subsection (10) amended by No. 44 of 1993, s. 14 and Sched. 1 ]*Notwithstanding the foregoing provisions of this section, where an employee has, whether before or after the commencement of this Act, entered into an agreement under subsection (5) of this section or under subsection (5) of section thirty-four of the repealed Act, and it is established to the satisfaction of the Secretary –
(a) on the certificate of a certifying medical officer, or, on appeal from that certificate, on the certificate of a medical referee, that the extent of the incapacity of the employee arising from the disease in respect of which he has been paid compensation has increased since the time when the employee entered into the agreement; and
(b) that, since entering into the agreement, the employee has not engaged in mining operations –
the employee shall be paid such further compensation as he might lawfully have been paid pursuant to this section if he had, at the time of entering into the agreement, been incapacitated to the extent specified in the medical certificate mentioned in paragraph (a) of this subsection, and any further compensation so payable may be paid either in a lump sum or by way of weekly payments.
23
Special provisions in respect of pneumonokoniosis, silicosis and fibrosis
23 Special provisions in respect of pneumonokoniosis, silicosis and fibrosis
(1) *[Section 23 Subsection (1) substituted by No. 45 of 1962, s. 2 ]**[Section 23 Subsection (1) amended by No. 44 of 1993, s. 14 and Sched. 1 and s. 15 and Sched. 2 ]*Where it is established to the satisfaction of the Secretary, on the certificate of a certifying medical officer, or, on appeal from that certificate, on the certificate of a medical referee, that an employee is suffering from pneumonokoniosis, silicosis, or fibrosis in the first, second, or third stage of the disease and that the disease is reasonably attributable to employment in mining operations, the Secretary may pay compensation to the employee in accordance with this section.
(2) *[Section 23 Subsection (2) substituted by No. 45 of 1962, s. 2 ]**[Section 23 Subsection (2) amended by No. 44 of 1993, s. 14 and Sched. 1 ]*The total compensation payable under this section in the case of a person suffering from any of the diseases referred to in subsection (1) of this section in the first or second stage of the disease shall not exceed such amount as the Secretary may determine, being –
(a) in the case of a person suffering from any of those diseases in the first stage, an amount not less than ten per centum and not greater than twenty per centum; or
(b) in the case of a person suffering from any of those diseases in the second stage, an amount not less than twenty-five per centum and not greater than fifty per centum –
of the total compensation that could have been paid to him under this Act if by reason of suffering from that disease he was incapacitated from continuing to work as an employee.
(3) *[Section 23 Subsection (3) substituted by No. 45 of 1962, s. 2 ]*The total compensation payable under this section to a person suffering from any of the diseases referred to in subsection (1) of this section in the third stage shall not exceed the total amount of compensation that could have been paid to him under this Act if, by reason of suffering from that disease, he had been incapacitated from continuing to work as an employee.
(3A) *[Section 23 Subsection (3A) inserted by No. 45 of 1962, s. 2 ]*For the purposes of this section, an employee shall be deemed to be suffering from pneumonokoniosis, silicosis, or fibrosis –
(i) he has definite physical signs of the disease or radiological changes indicative of the disease have occurred to greater degree than those referred to in paragraph (a) of this subsection; and
(ii) his capacity for work is impaired to some extent by the disease; and
(c) in the third stage, when (whether or not accompanied by infection or tuberculosis) severe symptoms of the disease are present and major radiological changes indicative of the disease have occurred.
(4) The provisions of this Act relating to compensation in the case of an employee who is incapacitated, so far as they are applicable, apply in the case of an employee who is receiving compensation under this section.
(5) *[Section 23 Subsection (5) amended by No. 44 of 1993, s. 14 and Sched. 1 ]*An employee who is receiving or has received compensation under this section shall not perform any work in connection with mining operations or be employed therein, except as may be approved by the Secretary on the recommendation of a certifying medical officer.
(6) *[Section 23 Subsection (6) amended by No. 55 of 1965, s. 5 ]**[Section 23 Subsection (6) amended by No. 43 of 1991, s. 5 and Sched. 1 ]*An employee who performs any work, and an employer who knowingly employs an employee, in contravention of subsection (5) of this section is guilty of an offence.
Penalty: Fine not exceeding 10 penalty units, together with a daily fine not exceeding 1 penalty unit.
(7) In addition to any penalty prescribed by subsection (6) of this section, an employee who is guilty of an offence against this section forfeits any claim to compensation under this Act.
24
Compensation in the case of death
24 Compensation in the case of death
(1) *[Section 24 Subsection (1) amended by No. 44 of 1993, s. 14 and Sched. 1 and s. 15 and Sched. 2 ]*Where it is established to the satisfaction of the Secretary, on the certificate of a certifying medical practitioner, or, on appeal from that certificate, on the certificate of a medical referee, that the death of an employee has been caused by disease, and the death has occurred –
(a) while he was employed as an employee; or
(b) while he was in receipt of a weekly payment under this Act in respect of incapacity due to disease –
the dependants of the employee are entitled to compensation in accordance with this section.
(2) *[Section 24 Subsection (2) amended by No. 54 of 1959, s. 4 ][Section 24 Subsection (2) substituted by No. 16 of 1965, s. 5 ][Section 24 Subsection (2) amended by No. 78 of 1967, s. 4 and Sched. 1 ]*The compensation payable in respect of the death of any person is a sum of an amount calculated by multiplying the basic rate at the date of his death by the appropriate multiplier and deducting from the product the aggregate of the amounts (as determined in accordance with section twenty-five AA ) of the sums paid to him by way of compensation under this Act before his death.
(3) *[Section 24 Subsection (3) amended by No. 54 of 1959, s. 4 ]**[Section 24 Subsection (3) substituted by No. 16 of 1965, s. 5 ]*The appropriate multiplier for the purposes of subsection (2) of this section is two hundred and sixty-three, increased, in the case of a person who leaves one or more dependent children, each of whom, at the date of the death of that person, either is under the age of sixteen years or is under the age of twenty-one years and receiving full-time education at a university, college, school, or similar institution, by –
(a) if there are not more than three such children, seven in respect of each of those children; or
(b) if there are more than three such children, twenty-one.
(4) *[Section 24 Subsection (4) amended by No. 44 of 1993, s. 14 and Sched. 1 ]*Claims for compensation under this section shall be determined by the Secretary on application to it in the prescribed manner by or on behalf of a person claiming to be interested therein as a dependant, and upon a claim therefor being made the Secretary may determine –
(a) who are the dependants to whom compensation is payable; and
(b) the allocation of compensation to or among those dependants.
(5) *[Section 24 Subsection (5) substituted by No. 16 of 1965, s. 5 ]**[Section 24 Subsection (5) amended by No. 44 of 1993, s. 14 and Sched. 1 ]*Where a person does not leave any dependants who are wholly dependent on his earnings or who would have been so dependent but for his incapacity due to disease, the Secretary may reduce the compensation that would otherwise be payable under this section on his death by such amount as it considers reasonable.
(6) All moneys payable by way of compensation under this section shall be paid to the Public Trustee on behalf of the persons entitled thereto.
(7) *[Section 24 Subsection (7) amended by No. 20 of 1995, s. 5 and Sched. 3 ]*The Public Trustee shall pay, invest, apply, or otherwise deal with the moneys paid to it under this section, and the income arising from the investment thereof, if any, to or for the benefit of the persons entitled thereto, in such manner as The Public Trustee considers appropriate.
25
Payments to dependants of deceased employee
25 Payments to dependants of deceased employee
(1) *[Section 25 Subsection (1) amended by No. 16 of 1965, s. 6 ]**[Section 25 Subsection (1) amended by No. 44 of 1993, s. 14 and Sched. 1 and s. 15 and Sched. 2 ]*Notwithstanding the provisions of section twenty-four , but subject to this section, where the death of an employee occurs while he is in receipt of a weekly payment under this Act in respect of incapacity due to disease, but is not caused by the disease, the dependants of the employee are, unless the Secretary otherwise determines, entitled to compensation as provided by that section; but where, by virtue of a determination made by the Secretary under section twenty-three , the total compensation payable to the employee is a proportion only of the total compensation that could have been paid to him under this Act if by reason of his suffering from a disease referred to in that section he was incapacitated from continuing to work as an employee, the appropriate multiplier referred to in subsection (2) of section twenty-four shall, for the purpose of determining the amount of compensation payable to his dependants under this section, be reduced in the like proportion.
(2) *[Section 25 Subsection (2) amended by No. 44 of 1993, s. 14 and Sched. 1 and s. 15 and Sched. 2 ]*Notwithstanding anything in subsection (1) of this section, where it is established to the satisfaction of the Secretary that, at the time of the death of an employee to whom that subsection relates, the extent of the incapacity of that employee arising from the disease in respect of which he was in receipt of a weekly payment under this Act had increased since the time when that weekly payment commenced, the dependants of that employee shall be paid such further compensation as they might lawfully have been paid pursuant to that subsection if at the time when the weekly payment to the employee commenced he had been incapacitated to the extent to which he was incapacitated at the time of his death.
(3) *[Section 25 Subsection (3) amended by No. 44 of 1993, s. 14 and Sched. 1 ]*Where an eligible employee who has not received any compensation under this Act dies and it is found that at the time of his death he was suffering from disease (whether the disease was a contributory cause of his death or not) the Secretary may, in its absolute discretion, pay to the dependants of that employee compensation at such rate, not exceeding a percentage of the compensation payable on death equal to the percentage of compensation that would have been payable to the employee under section twenty-three , if he had qualified for the payment of compensation under that section, as the Secretary may determine.
25AA
Calculation of payments, &c.
25AA Calculation of payments, &c.
[Section 25AA Inserted by No. 16 of 1965, s. 7 ]
(1) Where, for the purposes of this Part, it is necessary to determine the aggregate of the payments made under this Part by way of compensation to any employee, that aggregate shall be deemed to be the aggregate of the following amounts, namely:
(a) The aggregate of the weekly payments made to the employee by way of compensation under this Part; and
(b) An amount that bears to the aggregate of the amounts of any lump sum payments made to the employee by way of compensation under this Part the same proportion as two hundred and eighty-four bears to two hundred and sixty-three.
(2) *[Section 25AA Subsection (2) amended by No. 78 of 1967, s. 4 and Sched. 1 ]*The average weekly wage for Hobart for any period shall be determined for the purposes of this Act by dividing by the number of weeks in the period the aggregate of the sums that would have been paid if on each day of the period a sum was paid that was equal to one-seventh of the basic rate for that day.
(3) *[Section 25AA Subsection (3) amended by No. 44 of 1993, s. 14 and Sched. 1 ]*References in this Part to the period of any payments shall in relation to a lump sum paid in respect of any incapacity be construed as references to the period commencing with the commencement of the period of the relevant incapacity and ending –
(a) where the lump sum is paid under an agreement made under subsection (5) of section twenty-two, on the date on which the agreement was entered into; or
(b) where the lump sum is paid under subsection (10) of that section, on the date on which the Secretary determined to make the payment of that lump sum.
(4) *[Section 25AA Subsection (4) amended by No. 44 of 1993, s. 14 and Sched. 1 ]*Where it has been established to the satisfaction of the Secretary in accordance with this Part that a person is suffering from an incapacity or disease to such an extent as would authorize or require the Secretary to make payments by way of compensation under this Part in respect of that incapacity or disease the date on which that fact is so established shall, for the purposes of subsection (3) of this section, be deemed to be the date of the commencement of the relevant period of incapacity in relation to any payments made by way of compensation under this Part in respect of that incapacity or that disease or any incapacity arising from the disease, whether or not those payments are made as a consequence of any increase in the severity or extent of the disease or incapacity.
25A.
25A.
[Section 25A Inserted by No. 35 of 1958, s. 2 ][Section 25A Repealed by No. 44 of 1993, s. 6 ]
Part IV
Part IV
[Part IV Repealed by No. 38 of 1988, s. 8 ]
26.
26.
[Section 26 Repealed by No. 38 of 1988, s. 8 ]
27.
27.
[Section 27 Repealed by No. 38 of 1988, s. 8 ]
28.
28.
[Section 28 Repealed by No. 38 of 1988, s. 8 ]
29.
29.
[Section 29 amended by No. 16 of 1965, s. 8 ][Section 29 amended by No. 78 of 1967, s. 4 and Sched. 1 ][Section 29 Repealed by No. 38 of 1988, s. 8 ]
30.
30.
[Section 30 Repealed by No. 38 of 1988, s. 8 ]
Part V
Miscellaneous
Part V Miscellaneous
31
Medical examination of employees claiming or in receipt of pension
31 Medical examination of employees claiming or in receipt of pension
(1) *[Section 31 Subsection (1) amended by No. 44 of 1993, s. 14 and Sched. 1 ]*An employee who claims compensation under this Act or is in receipt of a weekly payment under this Act shall present himself for medical examination or treatment, or further medical examination or treatment, as the case may be, at such times, in such manner, and subject to such conditions, as the Secretary may determine.
(2) If an employee fails to comply with the provisions of subsection (1) of this section his right, if any, to compensation under this Act is suspended until the required examination or treatment takes place.
(3) [Section 31 Subsection (3) amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019] *[Section 31 Subsection (3) added by No. 31 of 1957, s. 4 ][Section 31 Subsection (3) amended by No. 38 of 1988, s. 9 ][Section 31 Subsection (3) amended by No. 44 of 1993, s. 7 and s. 14 and Sched. 1 ]*In such cases and to such extent as the Secretary may determine, the costs of any treatment for which an employee presents himself pursuant to this section shall, except as provided in subsection (3A) of section forty , be paid out of the Public Account without further appropriation than this section.
32
Appeal to medical referee
32 Appeal to medical referee
(1) *[Section 32 Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ]*If an employee or his employer is dissatisfied with a certificate (other than a certificate given on an initial medical examination) given by a certifying medical officer under this Act in relation to the employee, the employee or the employer, as the case may be, may appeal, as prescribed, to a medical referee against the certificate.
(2) *[Section 32 Subsection (2) amended by No. 44 of 1993, s. 14 and Sched. 1 ]*The matter of an appeal under this section shall be decided by the medical referee, who shall certify his decision, in writing, to the Secretary.
(3) A certificate of a medical referee under this section is conclusive as to all matters contained therein in relation to the health of the employee to whom it relates.
33
Expenses in connection with medical examinations and appeals
33 Expenses in connection with medical examinations and appeals
(1) *[Section 33 Subsection (1) amended by No. 44 of 1993, s. 14 and Sched. 1 ]*An employee who presents himself for medical examination under this Act is entitled to be paid by the Secretary such compensation for the out-of-pocket expenses and loss of time, if any, incurred by him in relation to the examination as may be prescribed or, in the absence of regulations in that behalf, as the Secretary may, in a particular case, determine.
(2) [Section 33 Subsection (2) omitted by No. 46 of 1991, s. 4 and Sched. 3 ]. . . . . . . .
(3) An employer or employee who appeals against a certificate of a certifying medical officer and whose appeal is sustained is entitled to be paid by the Board such compensation for the out-of-pocket expenses and loss of time, if any, incurred by him in relation to the appeal as may be prescribed or, in the absence of regulations in that behalf, as the Board may, in a particular case, determine.
(4) [Section 33 Subsection (4) amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019] *[Section 33 Subsection (4) substituted by No. 38 of 1988, s. 10 ]**[Section 33 Subsection (4) amended by No. 44 of 1993, s. 8 ]*Any payment made under this section shall be made out of the Public Account without further appropriation than this section.
34.
34.
[Section 34 Repealed by No. 44 of 1993, s. 9 ]
35.
35.
[Section 35 Repealed by No. 44 of 1993, s. 9 ]
36
Information and evidence
36 Information and evidence
(1) *[Section 36 Subsection (1) substituted by No. 44 of 1993, s. 10 ]*For the purposes of this Act, the Secretary may, by notice in writing to a person, require that person –
(a) to furnish the Secretary with such information as he or she may require and as may be specified in the notice; or
(b) to attend and give evidence before the Secretary; or
(c) to produce all books, documents and other papers that are in the custody or under the control of that person.
(2) A notice under subsection (1) of this section may be delivered to the person to whom it applies or may be forwarded to him by post addressed to his usual or last-known place of abode or business.
(3) *[Section 36 Subsection (3) amended by No. 44 of 1993, s. 15 and Sched. 2 ]*For the purposes of this section, the Secretary may require any information or evidence to be given on oath and either verbally or in writing and, for that purpose, the Secretary may administer oaths or affirmations.
(4) *[Section 36 Subsection (4) amended by No. 44 of 1993, s. 15 and Sched. 2 ]*The regulations may prescribe scales of expenses to be allowed to persons who are required to attend before the Secretary pursuant to this section.
37
Access to books, &c.
37 Access to books, &c.
*[Section 37 Amended by No. 44 of 1993, s. 15 and Sched. 2 ]*The Secretary has, at all times, full and free access to all buildings and places, and to all books, documents, and other papers, for any of the purposes of this Act, and, for those purposes, may make extracts from, or copies of, any books, documents, or papers.
38
Payments not assignable, &c.
38 Payments not assignable, &c.
A weekly payment, or a lump sum payable in lieu thereof, is not capable of being assigned, charged, or attached, and does not pass to any other person by operation of law, and no claim may be set off against it.
39
Compensation a bar to proceedings at law
39 Compensation a bar to proceedings at law
Where an employee has been paid any compensation under this Act, he shall be deemed to have waived all rights at common law or otherwise against his employer in respect of temporary or permanent incapacity due to disease.
40.
40.
[Section 40 amended by No. 31 of 1957, s. 5 ][Section 40 amended by No. 38 of 1988, s. 11 ][Section 40 Repealed by No. 44 of 1993, s. 11 ]
41.
41.
[Section 41 Repealed by No. 44 of 1993, s. 11 ]
42.
42.
[Section 42 amended by No. 38 of 1988, s. 11 ][Section 42 Repealed by No. 44 of 1993, s. 11 ]
43
Appeal from decisions of Secretary
43 Appeal from decisions of Secretary
[Section 43 Substituted by No. 44 of 1993, s. 11 ]
(1) [Section 43 Subsection (1) amended by No. 33 of 2023, s. 38, Applied:27 Nov 2023] *[Section 43 Subsection (1) amended by No. 16 of 1995, s. 95 ]*An employee who is aggrieved by a determination, order, ruling, direction or decision made or given by the Secretary may appeal to the Tasmanian Civil and Administrative Tribunal which must hear and determine the appeal.
(2) *[Section 43 Subsection (2) amended by No. 16 of 1995, s. 95 ]**[Section 43 Subsection (2) amended by No. 42 of 1996, s. 3 and Sched. 1 ]*For the purposes of subsection (1) –
Power of Secretary to terminate payments in certain cases
44 Power of Secretary to terminate payments in certain cases
(1) [Section 44 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] *[Section 44 Subsection (1) amended by No. 44 of 1993, s. 14 and Sched. 1 and s. 15 and Sched. 2 ]*Where it appears to the Secretary that an employee to whom a sum by way of compensation is payable under this Act ought, on account of his neglect of his spouse, children, or other dependants, to be deprived of any part of that sum, or that the terms on which, or the manner in which, the sum is payable to him ought to be varied, the Secretary may cease to pay that sum to the employee, and may, if in his or her opinion the circumstances warrant it, pay the sum of which the employee has been deprived to, or for the benefit of, any member of his family, as in the circumstances he or she thinks just.
*[Section 45 Amended by No. 55 of 1965, s. 5 ]**[Section 45 Amended by No. 43 of 1991, s. 5 and Sched. 1 ]*An employer shall cause to be exhibited and kept exhibited in some conspicuous place at or in the mine, factory, workshop, room, premises, or other place where an employee employed by him is working, a statement in such form, and containing such particulars of the provisions of this Act, as may be prescribed.
Penalty: Minimum, fine not exceeding 1 penalty unit; maximum, fine not exceeding 10 penalty units, together with a daily fine not exceeding 1 penalty unit.
46
Offences and penalties
46 Offences and penalties
(1) *[Section 46 Subsection (1) substituted by No. 44 of 1993, s. 12 ]*A person must not –
(a) fail to furnish any information or perform any duty as and when required by or under this Act or fail to comply with any lawful requirement of the Secretary under this Act; or
(b) without just cause, fail to attend and give evidence before the Secretary when so required pursuant to section 36 ; or
(c) fail to answer fully and truthfully any question that is put to him or her when attending before the Secretary or to produce any book, document or paper that he or she is required pursuant to that section to produce; or
(d) give to the Secretary any information, whether verbally or in writing, that is false or misleading in a material particular; or
(e) in the case of an employee, fail to comply with any provision of this Act requiring him or her to present himself or herself for a medical examination or to undergo any test or treatment.
Penalty: Fine of not less than 5 penalty units and not more than 10 penalty units.
(2) *[Section 46 Subsection (2) amended by No. 55 of 1965, s. 5 ][Section 46 Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 46 Subsection (2) amended by No. 44 of 1993, s. 14 and Sched. 1 ]*A person who, after conviction for an offence against paragraph (a) or paragraph (b) of subsection (1) of this section, continues to fail to comply with any requirement of this Act or of the Secretary in respect of which he was convicted, is liable to a fine of not less than 10 penalty units or more than 100 penalty units.
(3) It is a defence to proceedings in respect of an offence against paragraph (d) of subsection (1) of this section if the defendant proves that the return or information to which the proceedings relate was given in good faith and without negligence.
(4) *[Section 46 Subsection (4) amended by No. 55 of 1965, s. 5 ]**[Section 46 Subsection (4) amended by No. 43 of 1991, s. 5 and Sched. 1 ]*No person shall, except in the performance of his duties under this Act, divulge any information as to the health of an employee that is acquired by him in the performance of his duties, except to that employee.
Penalty: Fine not exceeding 10 penalty units.
(5) *[Section 46 Subsection (5) amended by No. 55 of 1965, s. 5 ][Section 46 Subsection (5) amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 46 Subsection (5) amended by No. 44 of 1993, s. 14 and Sched. 1 ]*Notwithstanding the foregoing provisions of this section –
(a) a person who, with intent to defraud, delivers to the Secretary a return that is false in any particular, or, with that intent, omits any particulars that should be included therein; or
(b) a person who, by any wilful act, default, or neglect, or by any fraudulent act or contrivance, avoids or attempts to avoid payment of any moneys that he is required, by or under this Act, to pay –
is liable to a fine of not less than 10 penalty units or more than 100 penalty units, and to payment of a further amount equal to thrice the amount of the moneys the payment of which would have been avoided if the return had been accepted by the Secretary, or, as the case may be, of the moneys the payment whereof he avoids or attempts to avoid.
(6) The imposition of a penalty in respect of an offence against this Act does not relieve the defendant from liability for the payment of any moneys that he would otherwise be liable to pay under this Act.
47
Time limit for taking proceedings
47 Time limit for taking proceedings
(1) Except as provided by subsection (2) of this section, proceedings in respect of offences against section forty-six may be commenced only within three years after the commission of the offence.
(1) The Governor may make regulations under this Act.
(2) *[Section 48 Subsection (2) amended by No. 55 of 1965, s. 5 ][Section 48 Subsection (2) amended by No. 38 of 1988, s. 13 ][Section 48 Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 48 Subsection (2) amended by No. 44 of 1993, s. 14 and Sched. 1 ][Section 48 Subsection (2) amended by No. 16 of 1965, s. 9 ]*Without prejudice to the generality of subsection (1) of this section, the regulations may –
(a) . . . . . . . .
(ab) [Section 48 Subsection (2) amended by No. 17 of 1996, Applied:10 Apr 2002] require the payment to the Secretary of sums in reimbursement of the expenses incurred by it in the arrangement of a medical examination or medical treatment for any person under this Act to which that person without reasonable excuse fails to submit himself; and
(ac) [Section 48 Subsection (2) amended by No. 17 of 1996, Applied:10 Apr 2002] authorize the Secretary to deduct those sums from any payments due to that person from the Secretary or to recover those sums from the employer of that person and, where those sums are so recovered from that employer, authorize him to make corresponding deductions in the remuneration of that person; and
(ad) [Section 48 Subsection (2) amended by No. 17 of 1996, Applied:10 Apr 2002] provide for the issue to any person who is or has been an employee of a record book and for the recording therein of the medical examinations and medical treatment to which that person has submitted himself under this Act; and
(b) provide that any return, application, or other document required by the regulations to be delivered to, or filed with, the Board, or any information or particulars contained therein, shall be verified by statutory declaration; and
(c) impose fines, not exceeding 10 penalty units, for offences against the regulations.
Part VI
Savings and Transitional Provisions
Part VI Savings and Transitional Provisions
[Part VI Inserted by No. 44 of 1993, s. 13 ]
49
Power of Secretary to wind up administration of this Act
49 Power of Secretary to wind up administration of this Act
*[Section 49 Inserted by No. 44 of 1993, s. 13 ]*The Secretary may, for the purpose of winding up the administration of this Act by the Board before the commencement date, enter into such contracts, agreements and arrangements as he or she thinks fit for the sale or other disposal of all or any of the Board's property to any person.
50
Saving for contracts, &c., of the Board
50 Saving for contracts, &c., of the Board
*[Section 50 Inserted by No. 44 of 1993, s. 13 ]*All contracts, agreements, arrangements and undertakings which were entered into by the Board before, but which were not performed or discharged by, the commencement date are, except in relation to an obligation which was required to be performed before that day, discharged.
51
Outstanding claims for compensation
51 Outstanding claims for compensation
[Section 51 Inserted by No. 44 of 1993, s. 13 ][Section 51 Amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019] On and from the commencement date all claims for compensation under this Act that would have been payable from the Workers' Fund before that date are to be paid from the Public Account without further appropriation than this section.
52
Transfer of assets, &c., of Board
52 Transfer of assets, &c., of Board
[Section 52 Inserted by No. 44 of 1993, s. 13 ]
(1) On and from the commencement date –
(a) such part of the Workers' Fund as consists of contributions made by the Treasurer is repayable to the Crown; and
(b) the balance of the Workers' Fund is payable to the University of Tasmania to be held on the trusts specified in section 53 ; and
(c) all other property that, immediately before that date, was vested in or belonged to the Board vests in and belongs to the Crown and all responsibility for the management and control of that property vests in the Crown; and
(d) all money, debts and claims, liquidated or unliquidated, that, immediately before that date, were payable to, due to or recoverable by, the Board are taken to be money, debts or claims payable to, due to or recoverable by, the Crown; and
(e) all money, debts and claims, liquidated or unliquidated, that immediately before that date were payable by, due from or recoverable against the Board are taken to be money, debts or claims payable by, due from or recoverable against, the Crown; and
(f) the Crown may enforce and realize any security existing immediately before that date in favour of the Board and exercise any powers conferred on the Board pursuant to that security as if the security were a security in favour of the Crown; and
(g) all legal proceedings pending immediately before that date which were instituted by or against the Board are taken to be legal proceedings pending on that date which were instituted by or against the Crown, as the case may be; and
(h) legal proceedings which could have been instituted by the Board to enforce an obligation that was required to be performed, or a right that has accrued, before that date may be instituted by the Crown; and
(i) legal proceedings which could have been instituted by a person against the Board to enforce an obligation that was required to be performed, or a right that had accrued, before that date may be instituted by that person against the Crown; and
(j) any judgment or order of a court obtained by the Board and not executed or satisfied before that date is taken to be a judgment or order in favour of the Crown; and
(k) any judgment or order of a court obtained by a person against the Board and not executed or satisfied before that date is taken to be a judgment or order against the Crown; and
(l) any document which was addressed to, and which purported to have been served on or notified to, the Board and which, whether under this Act or otherwise, had not ceased to have effect before that date is taken to have been served on, or notified to, the Crown; and
(m) any document which was addressed to, and which purported to have been served on or notified to, a person by or on behalf of the Board and which, whether under this Act or otherwise, had not ceased to have effect before that date is taken to have been served on, or notified to, that person by the Crown.
(2) The rights, obligations and exceptions conferred on, imposed on or applicable to, the Crown under Part VI of theSupreme Court Civil Procedure Act 1932 apply to and in respect of legal proceedings and claims referred to in subsection (1) , notwithstanding that those rights, obligations and exceptions or any of them were not conferred or imposed on, or applicable to, the Board in respect of legal proceedings or claims concerning the Board before the commencement date.
Administration of research fund by University of Tasmania
53 Administration of research fund by University of Tasmania
[Section 53 Inserted by No. 44 of 1993, s. 13 ]
(1) The principal and interest of the money paid to the University of Tasmania under section 52(1)(b) is to be available for the encouragement of medical research into the causes, treatment and prevention of any disease, injury or medical condition which may occur in, or arise from, mining operations and also into rehabilitation after any such disease, injury or condition.
(2) In the administration of the trusts arising under this section by the University of Tasmania –
(a) grants for research are not to be made except after consultation with organizations representing the interests of the employers and employees engaged in mining operations; and
(b) the University may reimburse itself for any expense reasonably incurred for the purposes of those trusts.
(3) In the selection of research projects for the purpose of making a grant, preference is to be given –
(a) in the first instance, to projects to be conducted in Tasmania or projects likely to benefit research into the health of mining employees in Tasmania; and
(b) secondly, to projects to be conducted in Australia.
(4) In the exercise of its powers under this section, the University of Tasmania must endeavour to ensure that as far as practicable the principal and interest of the money paid to it under section 52(1)(b) is applied during a period of 2 years commencing on the commencement date.
1. For the purposes of this schedule, average weekly earnings means the average weekly earnings during the twelve months immediately preceding the incapacity or death, as the case may be, of an employee.
2. Subject to this schedule, the average weekly earnings of an employee shall be computed in such manner as is best calculated to give the weekly rate at which the employee was being remunerated.
3. *[Schedule 4 Clause 3 substituted by No. 106 of 1973, s. 5 ]*For the purposes of this schedule –
(a) in computing average weekly earnings, amounts paid for overtime worked by an employee shall be included, but any amounts paid to an employee at the discretion of his employer by way of bonus, gratuity, or other similar payment shall be excluded;
(b) where, by reason of the shortness of time during which an employee has been in the employment of his employer, or the terms of his employment, it is impracticable to compute the average weekly earnings of the employee under that employer during any relevant period under that employer, those average weekly earnings shall, for the purposes of this Act, be taken to be the average weekly earnings during that period by a person in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person in the same grade employed in the same class of employment in the same district;
(c) where an employee had entered into concurrent contracts of service with two or more employers under which he worked at one time for one of those employers and at another time for the other or another of those employers, or where an employee's employment had been of a casual nature, his average weekly earnings shall, subject to paragraph (d) of this clause, be computed as if his earnings under all those contracts or in the employment of his several employers were earnings in the employment of the employer for whom he was working at the time of his incapacity or death, as the case may be;
(d) where one of the contracts referred to in paragraph (c) of this clause is a full-time contract of service, the average weekly earnings of the employee who is a party to the contract shall be computed by reference only to the full-time contract of service;
(e) employment by the same employer shall be taken to mean employment by the same employer in the grade in which an employee was employed at the time of his incapacity or death, uninterrupted by absence from work due to illness or any other unavoidable cause, and an employee shall be deemed to have been employed in a new grade of employment whenever his rate of payment has been lawfully increased or decreased otherwise than by reason of a decision affecting the persons engaged in his grade of employment generally;
(f) where an employer has been accustomed to pay to an employee a sum to cover any special expenses entailed on him by the nature of his employment, the sum so paid shall not be reckoned as part of the earnings; and
(g) where an employee delivers to his employer a statement in writing, verified by statutory declaration, setting out the amount of his earnings during any period, that statement is evidence that that amount was the earnings of the employee during that period.
Source text: opening excerpt
Sourced from Tasmanian Legislation Online (legislation.tas.gov.au), CC BY 4.0.
Part I Preliminary
Part I Preliminary
1 Short title
1 Short title
This Act may be cited as the Workers' (Occupational Diseases) Relief Fund Act 1954 .
2 Repeal
2 Repeal
The Acts that are specified in Schedule 1 are repealed.
3 Interpretation
3 Interpretation
[Section 3 amended by No. 16 of 1965, s. 2 ][Section 3 amended by No. 78 of 1967, s. 2 ][Section 3 amended by No. 26 of 1991, s. 6 ]**[Section 3 Substituted by No. 44 of 1993, s. 4 ]
(1) *[Section 3 Subsection (1) amended by No. 31 of 1957, s. 2 ][Section 3 Subsection (1) amended by No. 96 of 1957, s. 2 ][Section 3 Subsection (1) amended by No. 54 of 1959, s. 2 ][Section 3 Subsection (1) amended by No. 40 of 1960, s. 2 ][Section 3 Subsection (1) amended by No. 16 of 1965, s. 2 ][Section 3 Subsection (1) amended by No. 78 of 1967, s. 2 ][Section 3 Subsection (1) amended by No. 106 of 1973, s. 2 ][Section 3 Subsection (1) amended by No. 29 of 1984, s. 3 and Sched. 1 ][Section 3 Subsection (1) amended by No. 38 of 1988, s. 4 ][Section 3 Subsection (1) amended by No. 26 of 1991, s. 6 ][Section 3 Subsection (1) amended by No. 42 of 1996, s. 3 and Sched. 1 ]*In this Act, unless the contrary intention appears –
basic rate means a sum equal to the basic salary for the purposes of Division 1 of Part VI of theWorkers Rehabilitation and Compensation Act 1988 ;
Board means the Workers' (Occupational Diseases) Relief Fund Board, as continued under this Act immediately before the commencement date;
[Section 3 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004]caring partner, in relation to a person, means the person who is in a caring relationship, within the meaning of the Relationships Act 2003 , with that person;
means a person appointed as a certifying medical officer under ;
Official rationales and consequential amendments are embedded in the text. The Act contains multiple repeals and substitutions across its life, and several operative provisions now function principally as transitional or winding‑up mechanisms rather than as an open regulatory regime. The statutory design therefore shifts both responsibility and fiscal cost from a statutory Board to the Crown and Public Account while maintaining pre‑existing entitlements for a limited class of legacy claimants.
Main concepts
The Act’s principal legal concepts are compensation entitlement for occupational disease, medical certification and adjudication, calculation rules for payments, investigative and evidentiary powers for the administering authority, limits and special rules for particular diseases, and transitional transfer of assets and liabilities.
Eligibility and scope (s 4). The Act expressly restricts its application to persons who were eligible immediately before the commencement date and to diseases for which compensation had been paid or approved at that time. This is not an open, prospective entitlement regime. The statute therefore operates as a closed list for legacy cases rather than an ongoing compensation scheme.
Disease list (s 3(1), Schedule 2). The Act defines “disease” by reference to Schedule 2. That Schedule lists respiratory diseases such as silicosis, pneumonokoniosis and fibrosis, various toxicities (lead, arsenic, carbon monoxide, cadmium), and occupational conditions such as contact dermatitis, ankylostomiasis and nystagmus. For purposes of Part III, these are the compensable conditions.
Medical determination and finality (ss 14, 20, 32). The Secretary appoints certifying medical officers and medical referees (s 14). A certifying medical officer must examine an employee presenting under the Act and certify to an inspector (s 20(1)). Certificates by certifying medical officers are conclusive as to health matters except insofar as appeal rights exist (s 20(3)). Appeals to a medical referee are provided (s 32) and the medical referee’s certificate is conclusive (s 32(3)). This creates a largely medicalised fact‑finding regime with limited judicialisation of medical questions.
Compensation calculation and caps (s 22, s 24, s 25AA, Schedule 4). For incapacity claims, weekly payments are at the “relevant compensation rate”, which is the greater of average weekly earnings (measured per Schedule 4) or ordinary time rate of pay (s 22(3)). The statute contains an aggregate cap on compensation payable by reference to an “average basic rate” multiplier (s 22(7), cross‑referenced to s 25AA). Death benefits are calculated by multiplying the basic rate by the statutory multiplier (263, with increases for dependent children) and deducting prior payments (s 24(2)-(3)). Schedule 4 prescribes the methodology for average weekly earnings, including treatment of overtime (included), discretionary bonuses (excluded), multiple contracts and casual employment.
Special treatment of silicosis/pneumonokoniosis/fibrosis (s 23). The Act provides stage‑based caps for these diseases: first and second stages permit specified percentage ranges of the total compensation that would have been payable had the employee been totally incapacitated, and the third stage can attract the full amount. It also prevents employees receiving compensation for these diseases from performing mining work unless the Secretary approves on medical advice (s 23(5)), and creates criminal penalties and forfeiture of entitlement for breaches (s 23(6)-(7)).
Administrative investigation and compulsion (ss 36-37). The Secretary may require individuals to provide information, attend and give evidence, produce books and documents, and may administer oaths (s 36). The Secretary has free access to premises and documents for the purposes of the Act (s 37).
Privacy and procedural protections (ss 33, 43, 44). There are rules entitling claimants to expenses and loss of time for medical examinations (s 33). Appeal rights exist to the Tasmanian Civil and Administrative Tribunal for aggrieved employees dissatisfied with Secretary decisions (s 43), and decisions by the Tribunal in review of the Secretary’s s 44 decisions are final (s 44(4)).
Winding up, transfers and trusts (Part VI, ss 49-53). The Secretary may make disposal arrangements for the Board’s property (s 49). Outstanding claims are to be paid from the Public Account from the commencement date (s 51). The Fund’s balance attributable to non‑Treasurer contributions is payable to the University of Tasmania to be held on trusts for medical research into mining‑related disease, with stated consultation and geographic preference obligations (s 52(1)(b), s 53). Other assets and legal proceedings vest in or transfer to the Crown (s 52).
Administrative finance and appropriations (s 14(4), s 33(4), s 51, s 52(3)). The Act repeatedly authorises payments out of the Public Account “without further appropriation”, for fees, examination expenses and outstanding claims. That is an express parliamentary authorisation for these flows of public money under the Act.
These concepts create a legal machine that preserves, adjudicates and pays legacy occupational disease claims while handing the funding and residual administration to the Crown and routing research funding to a university trust.
Who it affects
The Act affects a constrained set of stakeholders; the statutory language and amendments make clear the cohort and the institutional recipients.
Eligible employees and their dependants. The primary intended beneficiaries are employees who immediately before the commencement date were “eligible employees” under the former regime and whose disease had attracted payment or approval at that time (s 4). Those employees, and their dependants in death cases (s 24(1)), retain rights to compensation subject to the Act’s processes and caps (ss 22, 23, 24, 25). Employees who currently receive weekly payments under the Act are required to submit to medical examination and may be suspended if they fail to do so (s 31). Employees receiving compensation for certain respiratory diseases are restricted from working in mining operations unless approved by the Secretary (s 23(5)).
Employers. Employers are required to exhibit a prescribed statement in a conspicuous place at mining workplaces describing the Act’s provisions (s 45). Employers must not knowingly employ a compensated employee in contravention of s 23(5) or face criminal liability (s 23(6)). Employers may be required to pay sums the regulations permit the Secretary to recover where a person fails to attend a medical examination arranged under the Act (s 48(2)(ab)-(ac)). Employers can be subject to notices to produce documents and to answer examinations under s 36. Employers who are parties to appeals may be entitled to costs for successful appeals (s 33(3)).
Medical practitioners. The Secretary appoints certifying medical officers and medical referees (s 14(1)). Their certificates are central to entitlement determinations (s 20(1), s 32). The Secretary pays fees for examinations and work under s 14(3), with payments charged to the Public Account (s 14(4)).
The Secretary and Crown agencies. The Secretary administers claims, determines dependants and allocation for death claims (s 24(4)), and carries investigatory powers (ss 36-37). The Crown inherits the Board’s assets, liabilities and pending legal proceedings (s 52(1)(c)-(k)) and assumes the financial obligation for outstanding claims (s 51). The Crown may enforce securities previously held by the Board (s 52(1)(f)).
The University of Tasmania and research bodies. The University receives the balance of the Workers’ Fund to hold on trusts for medical research into causes, treatment and prevention of mining‑related disease (s 52(1)(b), s 53). The University must consult employer and employee organisations before grants and has preferences for Tasmanian projects and Australian projects (s 53(2)-(3)).
The Public Trustee. For payments due to persons under 18 years, compensation may be paid to the Public Trustee to apply for the minor’s benefit (s 22(8)). Death compensation sums payable are paid to the Public Trustee who administers those monies for dependants (s 24(6)-(7)).
Adjudicative bodies. The Tasmanian Civil and Administrative Tribunal hears appeals from Secretary decisions (s 43) and decisions on review under s 44 are final (s 44(4)). The Supreme Court Civil Procedure Act rules relating to Crown proceedings apply to transferred suits (s 52(2)).
Insurers and creditors. A weekly payment or lump sum is not assignable, chargeable or subject to attachment and is protected from set‑off (s 38). That affects creditors seeking recovery from compensated individuals.
The Act therefore imposes duties on employers and claimants, assigns decision‑making and enforcement to the Secretary and tribunals, and redirects funds and research roles to the Crown and the University of Tasmania.
Key duties and rights
The Act creates specific duties on the Secretary, employers and employees, and sets out individual rights to compensation and to appeal. The following are operational responsibilities and entitlements with section references.
Duties of the Secretary
Appointment and payment of medical officers and referees (s 14(1), (3)). The Secretary must appoint practitioners as certifying medical officers and medical referees and pay fees approved by the Minister for examinations and certificates; payment is from the Public Account (s 14(3)-(4)).
Determination and payment of compensation claims (s 21, s 22(9), s 24(4)). The Secretary determines claims in the prescribed manner and decides dependants and allocations in death cases (s 24(4)).
Investigatory powers (ss 36-37). The Secretary may require persons to furnish information, produce documents and attend to give evidence, may administer oaths (s 36(1), (3)), and has free access to premises and books for Act purposes (s 37).
Discretion to vary or cease payments for neglect of dependants (s 44(1)). The Secretary may stop payments and pay sums to family members if the Secretary thinks it just.
Winding up administration and asset disposal powers (s 49). The Secretary may enter into contracts for disposal of Board property for winding up.
Duties of employees
Medical attendance and treatment (s 31). An employee claiming or receiving compensation must present for medical examinations or treatment as the Secretary directs. Failure suspends entitlement until compliance (s 31(2)).
Duty to provide information and not to give false or misleading information (ss 36, 46(1)(d)). The Secretary may require information and the Act criminalises false or misleading information in a material particular with penalties (s 46(1)(d), (5)).
Duties of employers
Display requirement (s 45). Employers must exhibit a prescribed statement about the Act at workplace locations; penalties attach for non‑compliance.
Employment restrictions for compensated workers (s 23(5)-(6)). Employers who knowingly employ an employee in contravention of s 23(5) commit an offence.
Rights of employees and employers
Entitlement to compensation where incapacity due to disease is established (s 22(1)). Weekly payments are payable at the relevant compensation rate (s 22(2)-(3)).
Option to commute weekly payments for a lump sum (s 22(5)-(6)). Where permanently incapacitated and aged 18 or over an employee may agree with the Board to accept a lump sum; agreements must be filed with the Secretary.
Appeal rights. Employees and employers may appeal certifying medical officer certificates to a medical referee (s 32). Employees aggrieved by a Secretary determination, order, ruling or decision may appeal to the Tasmanian Civil and Administrative Tribunal (s 43(1)).
Expense reimbursement. Employees presenting for medical examination are entitled to compensation for out‑of‑pocket expenses and loss of time as prescribed or as determined by the Secretary; successful appellants to a medical referee are entitled to be paid reasonable expenses by the Board (s 33).
Specific calculation and limits
Average weekly earnings methodology (Schedule 4). Schedule 4 sets precise rules on what counts in computing average weekly earnings: overtime is included, discretionary bonuses excluded, and treatment of concurrent contracts and casual employment is specified (Schedule 4 cl 3).
Aggregate cap and conversion for lump sums (s 22(7), s 25AA(1)). There is a formula limiting aggregate payments to a multiple of the average basic rate; Schedule 25AA prescribes how lump sums are converted into equivalent weekly payment periods using a 284:263 ratio.
Death compensation formula (s 24). Death compensation is basic rate times statutory multiplier with deductions for prior payments and additional increments for dependent children (s 24(2)-(3)).
Finality
Conclusiveness of medical referee certificates (s 32(3)). A medical referee’s certificate is conclusive on medical matters. Likewise, certifying medical officer certificates are conclusive except where appeal is available (s 20(3)).
Compensation bars common law claims (s 39). Receipt of compensation under the Act is a bar to common law claims against the employer for the same temporary or permanent incapacity due to disease.
These duties and rights produce a largely administrative, medically driven compensation process with defined calculation rules, investigatory powers and prescribed appeal pathways.
Penalties and enforcement
The Act creates criminal and civil enforcement levers, fines expressed in penalty units, compulsion by notice, suspension of payments for non‑compliance with medical attendance, and forfeiture for breaches of specific employment restrictions.
Criminal offences and fines
False or misleading information and failure to comply with lawful requirements (s 46(1)). A person who fails to furnish required information, attend when required, answer questions fully, produce documents, or in the case of an employee, fail to submit for required medical examination or tests commits an offence. Penalty: a fine not less than 5 penalty units and not more than 10 penalty units.
Continued non‑compliance after conviction (s 46(2)). After conviction for an offence under s 46(1)(a) or (b), continuing non‑compliance attracts a higher fine, between 10 and 100 penalty units.
Fraud and deliberate avoidance of payment (s 46(5)). A person who with intent to defraud delivers a false return, omits required particulars or wilfully avoids payment of moneys due under the Act is liable to a fine of 10-100 penalty units and to payment of a further amount equal to three times the avoided moneys.
Privacy breach (s 46(4)). Divulging information obtained about an employee’s health outside the performance of Act duties is an offence punishable by a fine not exceeding 10 penalty units.
Offence for carrying out mining work while in receipt of compensation for specified respiratory diseases (s 23(6)). Both the employee performing the work and the employer who knowingly employs that person in contravention are guilty of an offence. Penalty: fine not exceeding 10 penalty units together with a daily fine not exceeding 1 penalty unit. In addition, an employee guilty of this offence forfeits any claim to compensation under the Act (s 23(7)).
Administrative enforcement and compulsion
Compulsory production and evidence (s 36). The Secretary can require attendance, information, production of books and documents and can administer oaths. Non‑compliance is an offence under s 46, and the Secretary may forward certificates received from inspectors to determine claims (s 20(2)).
Suspension of payments for non‑attendance (s 31(2)). If an employee fails to attend for medical examination or treatment as required under s 31(1), the employee’s right to compensation is suspended until compliance.
Power to vary payments for neglect of dependants (s 44(1)). The Secretary may cease or vary payments where it appears the employee neglects dependants; that decision is subject to review to the Tasmanian Civil and Administrative Tribunal (s 44(2)) and that Tribunal’s decision on review is final (s 44(4)).
Civil procedure and transfer effects
Transfer of proceedings to the Crown (s 52(1)(g)-(k)). Pending legal proceedings instituted by or against the Board are taken to be proceedings by or against the Crown; the Crown may enforce securities formerly enforceable by the Board (s 52(1)(f)). The Crown benefits from the rights and exceptions in Part VI of the Supreme Court Civil Procedure Act 1932 in respect of such proceedings (s 52(2)).
Monetary recovery and administrative offsets
Regulations empower deductions and recoveries (s 48(2)(ab)-(ac)). The regulations may require payment to the Secretary of sums to reimburse exam/treatment arrangement costs where a person without reasonable excuse fails to submit, and authorise deductions from payments due to the person or recovery from the employer.
Evidence and finality of medical determinations
The conclusive nature of medical certificates (s 20(3), s 32(3)) narrows the scope for litigation on medical facts, concentrating dispute resolution through medical referees and the Tribunal for Secretary decisions.
Time limits
Offence time limits (s 47). Proceedings for offences under s 46 may generally be commenced within three years of the offence, but for fraud and false returns (s 46(1)(a)) or false/misleading information (s 46(1)(d)), proceedings may be brought at any time.
Practically, enforcement is a mix of criminal penalties based on statutory non‑compliance and administrative levers such as payment suspension and recovery via regulation, combined with an appeals architecture that limits judicial re‑litigation of medical findings.
How it interacts with other laws
The Act is interlaced with several other Tasmanian statutes and administrative systems; its operative language expressly incorporates or references other Acts and tribunals for definitions, rates, adjudication and procedure.
Workers Rehabilitation and Compensation Act 1988. The Act defines “basic rate” by reference to Division 1 of Part VI of the Workers Rehabilitation and Compensation Act 1988 (s 3(1), definition of “basic rate”). This cross‑reference anchors the death compensation calculus to rates determined under the 1988 Act instead of prescribing absolute amounts in this Act.
Relationships Act 2003. The Act imports definitions of “spouse” and “caring partner” from the Relationships Act 2003 for family and dependant definitions (s 3(1), definitions of “spouse” and “caring partner”). This affects who qualifies as a dependant for death compensation and allocation decisions.
Mineral Resources Development Act 1995. Section 20(1)(b) requires certifying medical officers to certify examination results to an inspector of mines appointed under the Mineral Resources Development Act 1995. That links the occupational health determination process to mining inspectors’ roles and channels information between health and mining safety regulators.
Tasmanian Civil and Administrative Tribunal (TCAT). Appeals from Secretary decisions under s 43 are to the Tasmanian Civil and Administrative Tribunal. The Act directs that the application and procedural machinery of the Workers Rehabilitation and Compensation Act 1988 applies to the hearing as if the appellant were an applicant under that Act (s 43(2)(a)), and appeals are to be instituted by the prescribed form in Part V of that Act (s 43(2)(b)). This embeds the 1988 Act’s procedural pattern into Tribunal reviews under this Act.
Supreme Court Civil Procedure Act 1932. Section 52(2) applies to legal proceedings and claims transferred from the Board to the Crown the rights, obligations and exceptions conferred on the Crown under Part VI of the Supreme Court Civil Procedure Act 1932. This alters procedural rights in litigation originating in the Board’s actions or obligations.
Public Trustee and Public Account rules. Payments for certain minor recipients and death benefits are delivered to the Public Trustee (s 22(8), s 24(6)-(7)). Several payments, including medical examiner fees and outstanding claims, are to be made from the Public Account without further appropriation (s 14(4), s 33(4), s 51). That interacts with general public finance rules and reduces the need for ad hoc appropriation for these flows.
Regulatory powers and record books. The Governor may make regulations under s 48. The enumerated regulatory heads include requiring payment to the Secretary to reimburse costs when a person without reasonable excuse fails to submit to arranged medical examination or treatment, authorising the Secretary to deduct those sums from payments or recover them from the employer, and providing for issuance and use of a record book to record medical examinations and treatment (s 48(2)(ab)-(af)). Those regulations link the Act’s enforcement and record‑keeping to administrative deduction and employer recovery mechanisms.
Other Acts repealed and saved. Schedule 1 lists numerous historical Acts repealed by s 2. Part VI contains transitional provisions for contracts and legal proceedings that were entered into by the Board prior to the commencement date (ss 50, 52). The transfer of assets and liabilities to the Crown (s 52) changes which entity interacts with other laws and how rights are enforced.
Overall, the Act functions within a network of Tasmanian legislation: it borrows definitional anchors and procedural templates from the Workers Rehabilitation and Compensation Act 1988 and the Relationships Act 2003, aligns enforcement and inspector interaction with mining law, funnels litigation into existing civil procedure regimes, and routes payments through public finance and trustee institutions.
Amendment history
The text contains multiple amendment annotations and several substantial structural changes. The key contours of amendment history visible in the text are the mid‑twentieth century insertions and the more recent 1993 restructuring which converted many Board functions into Crown administration and inserted Part VI transitional arrangements.
Notable amendments and substitutions shown in the text
Repeals and consolidations. The Act repealed earlier Workers' (Occupational Diseases) Relief Fund Acts listed in Schedule 1 (s 2, Schedule 1). That schedule lists successive Acts from 1928 through 1953. The Act itself has been the subject of later amendments.
1993 reform and winding up. Several sections have the note “Substituted by No. 44 of 1993” and multiple sections were repealed by No. 44 of 1993 (see multiple “Repealed by No. 44 of 1993” annotations). Part VI (ss 49-53) was inserted by No. 44 of 1993, indicating that the 1993 amendment materially changed the Act’s administrative structure and created explicit winding up and transfer provisions (ss 49-53).
Section substitutions and removals. Many sections in Part II and early Part III are marked as repealed by No. 44 of 1993. Section 14 was substituted by No. 44 of 1993 and later amended by other Acts. Section 20 has had subsections amended by No. 44 of 1993 and other Acts. Several other sections show a patchwork of amendments in the 1950s-1970s (e.g., s 22 has amendments from No. 31 of 1957, No. 106 of 1973, No. 16 of 1965 and others).
Later targeted amendments. The Act carries more recent amendment notes relating to administrative details: for example, s 32(1) was amended by No. 68 of 1994 and s 43(1) was amended by No. 33 of 2023 with an applied date; s 14(1) noted an applied date for an amendment in 2010; s 14(4) and s 33(4) show applied dates for 2019 amendments; s 44 contains amendments with later applied dates including 2025 amendments affecting appeal pathways (see notes at s 44). The annotations show that the Act has been adjusted over time to update institutional relationships and financial arrangements.
Inserted clauses with financial effects. Section 14(4), s 33(4) and s 51 contain express authorisations to pay from the Public Account “without further appropriation”, and these were inserted or amended at different times (s 14(4) with 2017 amendment applied 2019; s 51 amended by No. 4 of 2017, applied 2019). These changes indicate a legislative decision to place payment responsibility on the Public Account rather than on a self‑supporting Board.
Schedule changes. Schedule 4 was amended by No. 106 of 1973 to substitute clause 3, altering average weekly earnings computation (Schedule 4 cl 3). Schedule 2 remains the disease list, but some disease definitions may have been amended over time with annotations indicating s 3 substitutions.
Concrete effect of the 1993 amendments
Structural change from Board to Crown. The prominent amendment No. 44 of 1993 substituted many sections and inserted Part VI. Section 52 transfers the Board’s property and pending legal proceedings to the Crown, establishes repayability of Treasurer contributions to the Crown, and directs the balance to the University. Section 51 moves outstanding claims to be payable from the Public Account. The aggregate effect is a change in institutional steward from an independent Board to Crown administration, coupled with the creation of a university trust for research funding.
Limitations of the amendment record in the text
The text contains in‑line amendment annotations but does not include dates for all amendments. It records the amending instrument numbers and sometimes applied dates; however it does not provide the legislative history narrative or explanatory memoranda. The schedule of repeals is explicit, but details of the policy drivers, debates, or retrospective coverage beyond what the text itself says are not provided.
For practitioners, the amendment history in the Act signals that the statutory regime was progressively limited and shifted financially and administratively into the public sector, with many operational functions repealed or subsumed. The 1993 package is the most consequential empirical change present in the annotations.
Litigation history
The legislation text supplied contains no judicial decisions, case citations, or a list of reported litigation. The Act itself mentions certain adjudicative routes and conclusive certificates which affect litigation strategy, but the text does not name or summarise any cases. The following observations are therefore limited to procedural and litigation‑relevant statutory mechanics rather than to any actual reported litigation.
Conclusive medical certificates reduce common law litigation over medical facts. The Act makes certifying medical officer certificates conclusive for health matters except as to appeal rights (s 20(3)), and makes medical referee certificates conclusive (s 32(3)). That statutory conclusiveness narrows the range of factual disputes that a court could re‑determine once the prescribed administrative avenues have been exhausted.
Appeal channels and finality. Appeals from Secretary decisions are directed to the Tasmanian Civil and Administrative Tribunal (s 43). The Tribunal is required to hear and determine appeals and the Workers Rehabilitation and Compensation Act 1988’s procedural framework extends to those appeals (s 43(2)). Decisions by the Tribunal on reviews under s 44 are final (s 44(4)). These provisions limit matters that might otherwise proceed to judicial review or broader legal challenges, and shape the administrative law pathway for litigants.
Transfer of outstanding proceedings to the Crown. Section 52(1)(g)-(k) takes pending proceedings by or against the Board into being proceedings by or against the Crown. Section 52(2) applies the Crown’s rights, obligations and exceptions under the Supreme Court Civil Procedure Act 1932. That transformation potentially changes litigation posture, pleading, and remedies available in historical cases involving the Board.
Bars to common law claims. Section 39 deems receipt of compensation under the Act to be a waiver of common law rights against the employer for temporary or permanent incapacity due to disease. That statutory bar affects the availability of concurrent civil actions for damages.
Because the supplied text contains no case law, practitioners should search Tasmanian authorities for reported decisions interpreting:
the conclusive nature of medical certificates and the scope of appeals to medical referees under ss 20 and 32;
the application of s 39 as a bar to common law claims and its interaction with any competition between statutory compensation and tort remedies;
the operation of s 52 in transferring proceedings to the Crown and the impact of s 52(2) on procedural rights and Crown immunity or exceptions.
Absent named cases in the text, one cannot summarise judicial holdings. The statutory mechanics described above, however, set the framework in which litigation would have occurred and are the starting point for any case law search.
Gotchas
Several features of the Act have practical consequences that may be overlooked unless specifically attended to. These are concrete drafting or operational traps that professionals should flag.
Narrow eligibility; closed class (s 4). The Act applies only to persons who were "eligible employees" immediately before the commencement date and to diseases for which compensation had been paid or approved at that time (s 4). New employees or newly diagnosed diseases post‑commencement will generally not be covered by this Act. Practitioners must not assume open‑ended entitlements.
Repeals and limited remaining provisions. Many sections are repealed (multiple “Repealed by No. 44 of 1993” annotations). The operative regime is largely transitional. Check whether an asserted provision was repealed before relying on it.
Conclusive medical certificates limit litigation (ss 20(3), 32(3)). Medical certificates are conclusive on health matters subject only to the appeal mechanisms built into the Act. If a claimant has not pursued the internal appeal, a court will be reluctant to revisit those medical findings.
Aggregate cap and conversion for lump sums (s 22(7), s 25AA(1)). The statute caps aggregate payments to "284 times average basic rate" as determined under s 25AA. Lump sums are converted using a 284:263 ratio (s 25AA(1)). This conversion reduces the apparent value of lump sums relative to weekly payments and creates valuation complexity. Ensure correct conversion when advising on commutation.
Treatment of overtime and discretionary payments (Schedule 4 cl 3). Average weekly earnings include overtime but exclude discretionary bonuses. In cases of varied remuneration patterns, the Schedule’s rules on concurrent contracts, casual employment and grading can materially affect compensation rates.
Employment prohibition with forfeiture (s 23(5)-(7)). An employee receiving compensation for silicosis/pneumonokoniosis/fibrosis may not perform mining work unless authorised by the Secretary. If either the employee or employer breaches this prohibition, not only is there a criminal penalty but the employee forfeits entitlement. This creates a strict compliance risk for employers recruiting compensated workers.
Payments not assignable (s 38). Weekly payments or lump sums cannot be assigned or attached and are protected from set‑off. Creditors cannot reach these funds, but this also means the Secretary cannot allow assignment arrangements common in other compensation schemes.
Secretary’s considerable discretion (ss 24(4)-(5), 36, 44(1)). The Secretary decides dependants and allocation of death benefits (s 24(4)) and may reduce compensation when no dependants are wholly dependent (s 24(5)). The Secretary also has broad investigatory and compulsion powers and may cease payments for neglect of dependants (s 44(1)). Administrative discretion is significant and subject to Tribunal review but not always to full judicial review of findings of fact.
Payment funding and appropriation mechanics (s 14(4), s 33(4), s 51). Certain payments are directed to be made from the Public Account “without further appropriation”. That reduces the need for separate appropriation acts, but practitioners should verify Treasury protocols and timing for payments and the practical availability of funds.
Research fund timing and consultation obligations (s 53). The University must apply the principal and interest of the Fund within two years as far as practicable (s 53(4)) and must consult organisations representing employers and employees before making grants (s 53(2)(a)). That creates procedural obligations on the University and potential stakeholder expectations about project selection.
Privacy rule limits but also a duty to disclose to the Secretary (ss 20(4), 46(4)). Employers and employees may inspect medical certificates while in possession of an inspector or the Secretary (s 20(4)), but s 46(4) forbids divulging health information except in the performance of duties under the Act. There is a tight interplay between disclosure to the Secretary for claim administration and external privacy protection.
Time limits for offences (s 47). Prosecutions for most offences under s 46 must be commenced within three years of commission, but prosecutions for fraudulent returns or false information can be commenced at any time (s 47). Preservation of evidence and document retention policies must factor this.
Transferred litigation procedural changes (s 52). Pending suits against the Board became suits against the Crown, and Crown procedural rights under the Supreme Court Civil Procedure Act apply (s 52(2)). That change may affect discovery, costs and other procedural strategies. Counsel should review the transferred proceedings for any rights or exceptions that the Crown may assert.
Each of these points maps to a specific statutory provision. Practitioners should check the precise wording referenced above before advising clients or taking action.
How to comply
Compliance requires actions by employers, employees, medical practitioners and administrators. The checklist below is a practical pathway rooted in the statutory obligations and rights.
For employers
Exhibit the prescribed statement. Ensure the prescribed statement about the Act is displayed conspicuously at mines or workplace locations where employees work (s 45). Confirm compliance with any regulations as to form and particulars. Non‑compliance attracts fines and potential daily fines (s 45).
Maintain and produce records. Expect notices from the Secretary under s 36 requiring production of books, documents and other papers. Keep payroll, contract and job‑grade records for at least the period that could be relevant to historical claims, noting that prosecutions for fraud may be commenced at any time (s 47).
Avoid employing compensated workers in breach. Do not knowingly employ an employee who is receiving compensation for pneumonokoniosis, silicosis or fibrosis in mining operations unless you have written approval from the Secretary, otherwise s 23(6) creates criminal liability and s 23(7) causes loss of compensation to the employee.
Cooperate with medical arrangements. Be prepared to facilitate or reimburse medical examinations where regulations require employer reimbursement of costs recovered from employers under s 48(2)(ac).
Respond to Secretary notices. If served with a s 36 notice, attend, answer fully and produce documents. Non‑compliance is an offence under s 46(1).
For employees and claimants
Confirm whether you fall within the Act. Check whether you were an eligible employee immediately before the commencement date and whether the disease was a covered disease with compensation paid or approved prior to commencement (s 4, Schedule 2). If not, the Act may not apply.
Present for required medical examinations. If you claim compensation or receive weekly payments, comply with medical examination or treatment requirements and attend at the times and conditions the Secretary prescribes (s 31). Failure suspends entitlement (s 31(2)).
Keep wage and employment evidence. For calculation of average weekly earnings, preserve records of ordinary time earnings, overtime (included), and any concurrent contracts; Schedule 4 cl 3 sets the methodology. Provide accurate statements to employers and ensure statutory declarations are used where required because Schedule 4 cl 3(g) makes those statements evidence.
Use appeal rights timely. If dissatisfied with a certifying medical officer certificate (other than initial exam), appeal to a medical referee as prescribed (s 32). If aggrieved by a Secretary decision, apply to the Tasmanian Civil and Administrative Tribunal under s 43. Be aware medical referee certificates are conclusive on medical matters (s 32(3)).
Consider commutation carefully. If permanently incapacitated, you may agree to a lump sum under s 22(5) if over 18. Remember the statutory conversion ratio in s 25AA(1) affects the aggregate valuation when lumps sums are being converted for cap calculations.
For medical practitioners and certifying officers
Accept appointments and follow certification obligations. The Secretary appoints certifying medical officers and medical referees (s 14(1)). Certifying medical officers must examine presenting employees and certify results to a mines inspector (s 20(1)). Be familiar with the conclusive effect of your certificates and the appeals route to a medical referee (s 20(3), s 32).
Procure fees via Minister approval. Fees for examinations and certificates are paid by the Secretary as approved by the Minister and charged to the Public Account (s 14(3)-(4)). Practitioners should confirm the fee schedule and payment process with the Department.
For administrators and the Secretary’s office
Follow prescribed claim procedures. Determine claims in the prescribed manner, decide dependants and allocation for death claims (s 24(4)), and ensure determinations are recorded to support Tribunal review.
Use investigatory powers prudently. When issuing s 36 notices requiring information or documents, ensure statutory procedures for service are followed and that oaths are properly administered when required (s 36(2)-(3)).
Manage public finance obligations. Coordinate with Treasury for payments that are to be made from the Public Account without further appropriation (s 14(4), s 33(4), s 51), and maintain records evidencing these payments.
Administer research fund obligations. If transferring balances to the University of Tasmania per s 52(1)(b), confirm that trusts established comply with s 53 obligations: consult employer and employee organisations (s 53(2)(a)), reimburse reasonable University expenses (s 53(2)(b)), and prioritise Tasmanian research projects (s 53(3)).
Preserve documentation for transferred litigation. For any contracts, securities or pending legal proceedings transferred to the Crown under s 52, ensure continuity of files so that the Crown can enforce or defend claims effectively and in line with s 52(2) procedural positions.
For lawyers and advisors
Verify current applicability. Before advising, confirm whether the client is within the closed class in s 4 and whether the relevant statutory provisions remain in force or were repealed by historical amendments.
Use appeal and review pathways deliberately. Exhaust prescribed medical appeals under s 32 where possible before escalating to Tribunal review under s 43. Tribunal decisions are final on s 44 reviews (s 44(4)).
Prepare for conversion and cap issues. When negotiating commutation or assessing aggregate exposure, apply s 25AA conversions and s 22(7) caps to calculate maximum payable amounts and advise on tax and settlement structuring accordingly.
Check records and time limits. For potential prosecutions or reclaimed payments, check document retention and the consequences of s 47 time limits. For fraud or false return allegations, note that proceedings may be brought at any time.
This compliance roadmap aligns actions to statutory duties and rights. In all instances, parties should confirm the current status of any regulation made under s 48 and the precise content of prescribed forms or processes referenced throughout the Act.
commencement date means the date of commencement of the Workers Compensation Legislation Amendment Act 1993 ;
court includes a tribunal or authority which is empowered by, or under, law to determine any matter judicially;
dependants means such members of the family of an employee as were dependent, wholly or partly, upon the earnings of the employee at the time of his or her death or would have been so dependent but for the incapacity of the employee due to disease, and includes a person whom the Secretary considers to be, or to have been, actually dependent upon the earnings of an employee;
disease means a disease specified in Schedule 2 ;
employee means a person to whom this Act applies as provided by section 4 ;
employer means a person with whom an employee has entered into a contract of employment or apprenticeship and includes the personal representative of a deceased employer;
functions includes duties;
legal proceedings includes an arbitration;
medical referee means a person appointed as a medical referee under section 14 ;
[Section 3 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004]member of the family, in relation to an employee, means the spouse, caring partner, father, step-father, grandfather, mother, step-mother, grandmother, son, step-son, grandson, daughter, step-daughter, granddaughter, brother, half-brother, sister or half-sister of the employee;
mineral does not include coal or shale;
mining operations means –
(a) the disturbing, removing, carting, carrying, sifting, smelting, refining, crushing or otherwise dealing with or treating any rock, stone, quartz, clay, sand, soil, ore or mineral by any method for the purpose of obtaining metals or minerals or for prospecting for metals or minerals; and
(b) any process in connection with the dealing with, treating or handling of, any rock, stone, quartz, clay, sand, soil, ore or mineral for that purpose; and
(c) the dealing with, treating or handling, in connection with a process mentioned in paragraph (a) or (b) , of any by-products or residues produced by, or arising from, that process; and
(d) the cutting, dressing, shaping or working on any stone, granite, marble or other similar substance; and
(e) the quarrying of blue metal or freestone; and
(f) the driving of a tunnel –
but does not include sluicing, dredging or any similar operations or mining for coal or shale, or the quarrying or crushing of any materials required for the construction or maintenance of roads;
obligations includes duties and liabilities;
property means any legal or equitable estate or interest, whether present or future and whether vested or contingent, or real or personal property of any description, and includes entitlements, powers and privileges;
regulations means regulations made and in force under this Act;
Secretary means the Secretary of the Department;
[Section 3 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004]spouse, in relation to a person, includes the person who is in a significant relationship, within the meaning of the Relationships Act 2003 , with that person;
Workers' Fund means the Workers' (Occupational Diseases) Relief Fund as continued under this Act immediately before the commencement date.
(2) References in this Act to the average weekly earnings of an employee before his or her incapacity or death are to be construed as references to his or her average weekly earnings as determined in accordance with Schedule 4 .
4 Application of Act to certain mining employees
4 Application of Act to certain mining employees
*[Section 4 Substituted by No. 44 of 1993, s. 4 ]*This Act applies only –
(a) to a person who immediately before the commencement date was an eligible employee within the meaning of this Act as then in force; and
(b) in respect of a disease for which compensation had at that time been paid or approved under this Act.
Part II Administration
Part II Administration
5.
[Section 5 Repealed by No. 44 of 1993, s. 5 ]
6.
[Section 6 amended by No. 16 of 1965, s. 2 ][Section 6 amended by No. 20 of 1986, s. 3 ][Section 6 Repealed by No. 44 of 1993, s. 5 ]
7.
[Section 7 Repealed by No. 44 of 1993, s. 5 ]
8.
[Section 8 Repealed by No. 44 of 1993, s. 5 ]
9.
[Section 9 Repealed by No. 44 of 1993, s. 5 ]
10.
[Section 10 amended by No. 78 of 1967, s. 4 and Sched. 1 ][Section 10 Repealed by No. 44 of 1993, s. 5 ]
11.
[Section 11 amended by No. 78 of 1967, s. 4 and Sched. 1 ][Section 11 Repealed by No. 44 of 1993, s. 5 ]
12.
[Section 12 Repealed by No. 44 of 1993, s. 5 ]
13.
[Section 13 Substituted by No. 29 of 1984, s. 3 and Sched. 1 ][Section 13 amended by No. 38 of 1988, s. 5 ][Section 13 Repealed by No. 44 of 1993, s. 5 ]
14 Certifying medical officers and medical referees
14 Certifying medical officers and medical referees
[Section 14 amended by No. 106 of 1973, s. 3 ][Section 14 amended by No. 38 of 1988, s. 6 ][Section 14 Substituted by No. 44 of 1993, s. 5 ]
(1) [Section 14 Subsection (1) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] The Secretary may appoint as many medical practitioners as the Secretary thinks necessary to be certifying medical officers or medical referees for the purposes of this Act.
(2) A certifying medical officer or medical referee holding office under this Act immediately before the commencement date is taken to have been appointed under this section.
(3) The Secretary must pay to –
(a) a certifying medical officer; or
(b) a medical referee –
such fee as the Minister may approve in respect of each examination made, certificate given or work or service performed for the purposes of this Act.
(4) [Section 14 Subsection (4) amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019] A payment under subsection (3) is to be paid from the Public Account without further appropriation than this section.
15.
[Section 15 amended by No. 38 of 1988, s. 6 ][Section 15 Repealed by No. 44 of 1993, s. 5 ]
Part III Provisions Relating to Mining Employees
Part III Provisions Relating to Mining Employees
16.
[Section 16 Repealed by No. 44 of 1993, s. 6 ]
17.
[Section 17 amended by No. 24 of 1982, s. 3 ][Section 17 amended by No. 20 of 1986, s. 4 ][Section 17 Repealed by No. 44 of 1993, s. 6 ]
18.
[Section 18 amended by No. 20 of 1986, s. 5 ][Section 18 Repealed by No. 44 of 1993, s. 6 ]
19.
[Section 19 Repealed by No. 44 of 1993, s. 6 ]
20 Examination by certifying medical officer or medical referee
20 Examination by certifying medical officer or medical referee
(1) A certifying medical officer –
(a) shall examine an employee who presents himself for medical examination in accordance with any of the provisions of this Act in order to ascertain whether the employee is suffering from disease or not; and
(b) [Section 20 Subsection (1) amended by No. 17 of 1996, Applied:10 Apr 2002] shall certify in writing to an inspector of mines appointed under the Mineral Resources Development Act 1995 the result of the examination.
(2) *[Section 20 Subsection (2) amended by No. 44 of 1993, s. 15 and Sched. 2 ]*An inspector of mines shall, forthwith after receiving a certificate under this section, forward or deliver the certificate to the Secretary.
(3) Subject to the right of appeal conferred on employers and employees by section thirty-two , a certificate of a certifying medical officer under this section is conclusive to all matters contained therein in relation to the health of the employee to whom it relates.
(4) *[Section 20 Subsection (4) amended by No. 44 of 1993, s. 15 and Sched. 2 ]*An employee and his employer may each inspect any medical certificate given in relation to the health of the employee under this section while the certificate is in the possession or custody of an inspector of mines or of the Secretary.
21 Compensation
21 Compensation
*[Section 21 Amended by No. 44 of 1993, s. 15 and Sched. 2 ]*Compensation is payable to and in respect of employees subject to and in accordance with the provisions of this Part.
22 Compensation in case of incapacity
22 Compensation in case of incapacity
(1) *[Section 22 Subsection (1) amended by No. 31 of 1957, s. 3 ][Section 22 Subsection (1) amended by No. 106 of 1973, s. 4 ][Section 22 Subsection (1) amended by No. 44 of 1993, s. 14 and Sched. 1 and s.15 and Sched. 2 ]*Where it is established to the satisfaction of the Secretary, on the certificate of a certifying medical officer or, on appeal from that certificate, on the certificate of a medical referee, that an employee is suffering from disease and is thereby incapacitated from continuing to work as an employee, that employee is entitled to compensation in accordance with this section.
(2) *[Section 22 Subsection (2) amended by No. 31 of 1957, s. 3 ][Section 22 Subsection (2) omitted by No. 16 of 1965, s. 4 ][Section 22 Subsection (2) inserted by No. 106 of 1973, s. 4 ]*The compensation payable to an employee under this section shall be by way of weekly payments at the relevant compensation rate.
(3) *[Section 22 Subsection (3) substituted by No. 31 of 1957, s. 3 ][Section 22 Subsection (3) substituted by No. 16 of 1965, s. 4 ][Section 22 Subsection (3) amended by No. 78 of 1967, s. 4 and Sched. 1 ]**[Section 22 Subsection (3) substituted by No. 106 of 1973, s. 4 ]*Subject to subsection (3A) of this section, the relevant compensation rate in respect of a period of incapacity of an employee is –
(a) the average weekly earnings of the employee over the period of twelve months ending at the commencement of the period of incapacity; or
(b) the ordinary time rate of pay of the employee (as expressed by reference to a week) for the work in which he was engaged immediately before the period of incapacity –
whichever is the greater.
(3AA) [Section 22 Subsection (3AA) inserted by No. 16 of 1965, s. 4 ]**[Section 22 Subsection (3AA) omitted by No. 106 of 1973, s. 4 ]. . . . . . . .
(3A) *[Section 22 Subsection (3A) inserted by No. 31 of 1957, s. 3 ][Section 22 Subsection (3A) substituted by No. 54 of 1959, s. 3 ][Section 22 Subsection (3A) substituted by No. 106 of 1973, s. 4 ]*If, during a period of incapacity of an employee, the ordinary time rate of pay (as expressed by reference to a week) for any work on which he was engaged immediately before the commencement of that period increases or decreases, the relevant compensation rate shall correspondingly be increased or decreased by the like amount.
(4) Where an employee would, but for the provisions of this subsection, be entitled to compensation under this section in respect of incapacity due to disease, and his employer provides him with other work that is not in the nature of mining operations and that the employee is capable of performing and the remuneration for the other work is not less than the remuneration that the employee was receiving at the time when the incapacity arose, the employee is not entitled to receive any compensation under this section while he is in receipt of that remuneration, and is not entitled to receive any compensation under this section if the other work is offered to him by his employer and he refuses to accept it.
(5) *[Section 22 Subsection (5) substituted by No. 16 of 1965, s. 4 ]**[Section 22 Subsection (5) amended by No. 106 of 1973, s. 4 ]*Where an employee is permanently incapacitated, either wholly or partially, from continuing to work as an employee and is entitled to compensation under this section he may, if he has attained the age of eighteen years, enter into an agreement in writing with the Board to receive a lump sum in satisfaction of the whole or a part of the weekly payments to which he would otherwise be so entitled; and upon payment of that lump sum his right to those weekly payments shall be deemed to have been satisfied to the extent specified in the agreement.
(6) *[Section 22 Subsection (6) substituted by No. 16 of 1965, s. 4 ]**[Section 22 Subsection (6) amended by No. 44 of 1993, s. 14 and Sched. 1 ]*An agreement made under subsection (5) of this section shall be filed with the Secretary.
(7) *[Section 22 Subsection (7) amend
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